Guy Hollebon

"The use of mediation to resolve workplace disputes is increasing fast" Guy Hollebon

The use of mediation and other forms for Alternative Dispute Resolution (ADR) within the workplace and within the Employment Tribunal system is not a new one however it is something which is rapidly gaining momentum. Since the Employment Act 2002 which introduced the concept of statutory grievance procedures (GPs) and dismissal and disciplinary procedures (DDPs) employers have seen a significant increase in the number of internal grievances being raised. In many cases the adversarial approach taken by the statutory GPs and DDPs have actually made the situation worse and resulted in a workplace conflict escalating in to a full blown dispute, ending in the Employment Tribunal.

 This flies in the face of the Government’s intention which was to introduce a system that managed conflict in the workplace and encouraged early dispute resolution. In turn the Government hoped that the number of cases ending up in what was already an over-worked and creaking Employment Tribunal system would reduce. A quick look at the official figures for the number of Employment Tribunal cases shows that the statutory GP and DDP system was not, to use what appears to have become a mantra for any central government politician, “fit for purpose”.

Box – Total Claims Accepted by the Employment Tribunal Service 

2004/05                       2005/06                       2006/07

86,181                         115,039                       132,577  

Source: Employment Tribunal Service Annual Statistics 2006/07
This article will look at the use of ADR methods within the workplace with a particular focus on mediation and how this can fit with the current legal landscape.

What is mediation? 

It is a form of ADR which involves a neutral third party (the mediator) assisting the parties in a dispute to try and resolve matters. The mediator does not act as a judge and make any decisions on the dispute nor does he/she express any opinions on who is right and who is wrong. The mediator is there to help facilitate a resolution of the dispute and reach a settlement. The process is confidential and is entirely without prejudice which means that nothing said at a mediation can be used in any later court or Employment Tribunal proceedings if a settlement is not reached. The process is voluntary and non binding until an agreement is recorded in writing. 

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When can mediation be used?

The simple answer is that any conflict which arises in the workplace is potentially suitable for resolution through mediation. At an early stage in any dispute it may be appropriate for there to be an “internal” mediator, that is another employee of the organisation who has been trained as a mediator. If the parties in conflict are very entrenched or if an internal mediator is perceived as not having sufficient neutrality then a fully independent external mediator can be brought in. 

Mediation can be considered as part of a grievance or disciplinary process to try and resolve the dispute however care needs to be exercised when considering mediation within a disciplinary process. In particular, in the majority of disciplinary matters there is an allegation of misconduct against an employee and this needs investigating with a view to making a firm decision on whether the allegation is true and if so what sanction to apply. Disciplinary matters are rarely appropriate for mediation where no decision will be imposed by the mediator and where the purpose is to seek an agreed resolution. Organisations do not want to be seen as tolerating misconduct and sweeping matters under the carpet. However, for grievances, mediation is a very useful tool to be used in seeking to resolve the dispute.

How to introduce mediation to an organisation 

An organisation can simply have mediation as part of its tool kit for resolving disputes. Something which can be proposed at the organisations discretion, as and when it considers it appropriate. Alternatively, an organisation may want to demonstrate its commitment to resolving workplace disputes and so may want to introduce a more formal policy on mediation. Implementing such a policy will ensure that all staff are aware of clearly understand when mediation may be used to seek a resolution of a workplace dispute.

Any such policy must be carefully considered and tailored to fit the particular organisation. Consideration should be given to whether the policy will be contractual (meaning that staff have the right to insist on mediation), who can invoke the mediation process, when mediation will be used and whether mediation will be used for disciplinary matters as well as grievances. The policy should also explain how a mediation will be set up, who the mediator will be and perhaps most importantly must deal with the confidentiality of the mediation process. 

Relationship between mediation and the Statutory GPs and DDPs

An organisation that is committed to resolving disputes at an early stage through mediation must be careful to ensure that it is still complying with its legal obligations in relation to statutory GPs and DDPs as not every dispute will be resolved through mediation. This is especially important as a failure by an employer to follow the statutory GP/DDP will mean an increase in any compensation awarded by an Employment Tribunal to the employee of between 10 and 50%.  

The statutory GPs and DDPs specifically state that having met with the employee and heard their side of things the employer must communicate a decision to the employee. As a result of this, a mediation meeting will not comply with the current statutory framework as the mediator will not be providing his or her “decision” but will be seeking to facilitate a resolution.

It is recommended that the mediation process is run separately, but in parallel with, the grievance or disciplinary process. It may be that employer and employee agree to the grievance/disciplinary process being put on hold while mediation is explored. As all steps within the statutory GP/DDP process must be taken without unreasonable delay it is strongly recommended that this agreement to put the GP/DDP on hold is recorded in writing and signed by the employee to ensure that the employee does not try and argue later that the grievance part took too long to complete. 

To infinity and beyond

Well, yes and no. Certainly and this trend is only set to continue especially in light of the Gibbons Review of Employment Dispute Resolution published in March 2007 which advocated a much increased role for mediation within workplace disputes.  

Happily, the Government has accepted Michael Gibbons recommendations (at least in part) and has just announced that the statutory GPs and DDPs will be abolished and in their place will be a voluntary Code of Practice issued by ACAS. Employers and employees who do not follow the Code of Practice (which has yet to be drafted) face a penalty of an increase/decrease in any compensation awarded by an Employment Tribunal by up to 25%. 

These changes are likely to happen in 2009 at which time it is also anticipated that the Code of Practice will include specific reference to mediation. Employers should now be looking proactively at the use of mediation within their organisation to make sure they are not left behind.

Guy Hollebon is Head of Employment at Bevans Solicitors and can be contacted at Bevans Solicitors, Grove House, Grove Road, Redland, Bristol, BS6 6UL or on 0117 923 7249 or at